What is IP Infringement?
Intellectual property infringement occurs when someone uses, sells, reproduces or takes advantage of your intellectual property without your permission.
Understanding how to identify and respond to IP infringement is crucial for protecting your valuable IP rights.
Types of IP Infringement?
Trademark Infringement
Occurs when someone uses a mark that is identical or deceptively similar to your registered trademark in relation to the same or similar goods or services, potentially causing consumer confusion.
Patent Infringement
Takes place when someone makes, uses, sells or imports your patented invention without your authorisation during the patent term.
Copyright Infringement
Happens when someone reproduces, publishes, performs, or communicates your copyright material without your permission, unless covered by exceptions like fair dealing.
Design Infringement
Occurs when someone makes, imports, sells, or uses products embodying your registered design without your consent.
Steps to Take When Your IP is Infringed
Gather Evidence
- Document all instances of infringement
- Collect dated copies of infringing material
- Record where and when you discovered the infringement
- Keep records of any financial impact on your business
Seek Legal Advice
- Consult with an IP lawyer to assess your position
- Determine the strength of your case
- Understand your options and potential costs
- Develop an enforcement strategy
Consider Initial Actions
- Send a cease and desist letter
- Propose negotiation or mediation
- Consider offering a licence agreement
- Explore alternative dispute resolution
Legal Proceedings
- File court proceedings if necessary
- Seek interim injunctions in urgent cases
- Pursue damages or an account of profits
- Consider customs seizure for imported goods
Preventive Measures
- Register your IP rights promptly and maintain registrations.
- Monitor the market regularly for potential infringements
- Use appropriate IP notices (®, ™, ©) on your materials
- Maintain detailed records of your IP creation and use
- Implement strong confidentiality agreements
- Consider IP insurance for litigation coverage
Available Remedies
- Injunctions: Court orders to stop infringing activity
- Damages: Compensation for losses suffered
- Account of Profits: Recovery of profits made from infringement
- Delivery Up: Surrender of infringing items
- Declaration: Court confirmation of your rights
- Legal Costs: Recovery of legal expenses
Common Q&A
Q: What is an interlocutory injunction?
An interlocutory injunction is an urgent temporary court order that prevents the alleged infringer from continuing their infringing activities until the final hearing.
Q: How are damages calculated in IP infringement proceedings?
Damages are calculated based on the actual loss suffered by the IP owner, which may include lost sales, damage to reputation, and loss of licensing opportunities.
Q: Can I claim both damages and an account of profits?
No, you must elect between either damages or an account of profits as they are alternative remedies that cannot be claimed simultaneously.
Q: What does 'delivery up' involve?
Delivery up requires the infringer to surrender all infringing items to the IP owner for destruction or other disposal as ordered by the court.
Q: When might additional damages be awarded?
Additional damages may be awarded in cases of flagrant infringement, where the infringer’s conduct was particularly egregious, or they gained significant benefit from the infringement.
Q: What is the purpose of a declaration by the court?
A declaration formally confirms your IP rights and the fact of infringement, which can be useful for future enforcement actions and negotiations.
Q: Are legal costs always recoverable?
While the successful party typically receives a costs order, the amount recoverable is usually only a portion of the actual legal costs incurred.
Q: Can I get an injunction without going to court?
No, injunctions can only be granted by a court, though the parties may agree to voluntary undertakings that achieve similar outcomes.
Q: How long do remedies take to obtain?
While urgent injunctions can be obtained within days, final remedies typically take months or years depending on whether the matter proceeds to trial.
Note: The information on this page provides a general overview and should not be taken as legal advice. Each matter is unique and requires specific legal analysis based on individual circumstances.